The traditional story of Fourth Amendment search and seizure doctrine involves a complex compromise between public safety and the constitutional right to personal liberty. (1) Although the choice of viewpoint is often left out of the story, much also depends on whose perspective--police officers' or civilians'--a judge employs for search and seizure determinations. (2) The chosen perspective circumscribes the types of facts that a judge considers in these evaluations. (3) Recently, in United States v. Washington, (4) the Ninth Circuit held that the district court should have suppressed evidence obtained through a vehicle search because the consent was not voluntary, or, even if it were voluntary, because the evidence was the fruit of an illegal seizure. (5) In its search and seizure analyses, the panel considered the tension that earlier police shootings had caused between police and the local black community. By including racialized community-police tension in its reasoning, the Ninth Circuit took a subtle but significant step toward aligning its Fourth Amendment analysis with the underlying principles of search and seizure standards, while also furthering the privacy and dignity interests (6) the Amendment seeks to protect.

In 2003 and 2004, white Portland police officers shot and killed two unarmed black citizens during routine traffic stops. (7) In response, the Portland Police Bureau, along with black community organizations, developed pamphlets describing how civilians should interact with police and targeted distribution to black communities. (8) One of the pamphlets advised readers to "follow [a police] officer's directions" and to "comply with the procedures for a search." (9) Defendant Bennie Washington, a black member of the Portland community, (10) knew of one of these pamphlets and was aware of the shootings. (11) At approximately 11:30 p.m. on November 23, 2004, Washington was sitting in his lawfully parked car on a public street, waiting to give his friends a ride home. (12) Portland police officer Daryl Shaw, a white man, parked his squad car behind Washington's vehicle in order to "initiate investigatory contact," despite his lack of reasonable suspicion. (13) Officer Shaw approached Washington's car and asked him whether he could search Washington's person, to which Washington consented. At Officer Shaw's request, Washington exited the vehicle and moved to the squad car where he was searched. (14) Officer Troy Pahlke (who is also white) arrived at the scene while Washington was exiting his car and positioned himself such that Washington could not reenter the vehicle. (15) Officer Shaw completed the personal search and received Washington's consent to search the car. (16) Neither officer told Washington he could decline to consent to either the search of his car or of his person. (17) Officer Pahlke discovered a firearm in the car, and Officer Shaw arrested Washington for driving with a concealed weapon. (18)

After Washington was indicted for being a felon in possession of a firearm, (19) he filed a motion to suppress the gun, claiming that the officers had violated the Fourth Amendment. (20) District Court Judge Haggerty denied the motion, finding that the police officers had not seized Washington and that he had voluntarily consented to the car search. (21) Washington conditionally pled guilty to the charge, and the district court sentenced him to seventy months in prison. (22)

On appeal, a Ninth Circuit panel vacated and remanded. Writing for the panel, Judge Gould (23) began the review of the suppression ruling by determining whether there had been an impermissible seizure. (24) Using the standard articulated in United States v. Mendenhall (25) and Florida v. Bostick (26)--whether "a reasonable person would have believed that he was not free to leave" (27)--the panel held that, under the initial circumstances of the encounter, there was no seizure. (28) To determine whether the encounter later escalated into a seizure, Judge Gould applied the factors articulated in Orhorhaghe v. …

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